Warkworth coal mine fiasco: inquiry needed

Published: April 07, 2014

Community groups in the Hunter Valley are calling for an independent inquiry into the assessment and approvals system for NSW coal mines, following today's judgement from the NSW Court of Appeal on the proposed expansion of Rio Tinto's Warkworth coal mine.

“Today's judgement proves once again that the expansion of the Warkworth mine is a bad idea,” said John Krey, from the Bulga Milbrodale Progress Association. “The costs of the mine outweigh the benefits, as the court has upheld.”

“Yet the mining company and the NSW Planning Department are making a mockery of fair procedure and the rule of law by simply restarting the approval process for the mine, and shutting the courts out of the new process,” said Mr Krey. “We now face the likelihood that the Warkworth coal mine expansion will go ahead, despite two courts ruling that it shouldn't. The NSW Planning Department is colluding with Rio Tinto to ensure this mine project is approved regardless of the costs to the community and the environment.”

“The Warkworth fiasco is symptomatic of a broken, unfair system of coal mine approvals in NSW,” said Steve Phillips, convenor of the Hunter Central Rivers Alliance of 40 community groups, which met in Bulga yesterday. “The system is rigged in favour of mining companies, and local communities don't stand a chance. Even if you prove in court that a coal mine should not go ahead, the Planning Department will work with the mining company to guarantee its approval. Even when you win, you lose.”

The Supreme Court this morning dismissed an appeal by Rio and the state government to reinstate the Planning Minister's approval of the Warkworth Extension Project, which was overturned by the NSW Land and Environment Court in April last year. Justice Brian Preston ruled then that the economic benefits of expanding the mine were exceeded by the harm it would do to the environment and the community of Bulga. He also ruled that the mining company and the government had significantly overestimated the benefits of the project.

While the Court of Appeal has today upheld that decision, Rio Tinto last week submitted a new application for the same mine expansion to the NSW Planning Department. The new application will be assessed under new mining regulations that force approval authorities to prioritise the significance of a coal resource over the impacts of mining. If the new application is approved, the Bulga community will not be able to appeal to the courts to review the decision (see attached backgrounder for more information).

“We urgently need an independent inquiry into the assessment and approvals process for coal mines in NSW,” concluded Phillips. “Right now, local communities have zero faith in the fairness and objectivity of the system, which is apparently incapable of saying 'no' to coal mines. We have seen too many dodgy mining projects approved despite all the evidence against them.”

New polling shows that 60% of people in NSW believe that corruption exists in the coal industry.

Background: Warkworth coal mine expansion

In March 2010 Rio Tinto applied to the NSW Government for approval for the “Warkworth Extension” – a major expansion of the Warkworth coal mine that threatened the village of Bulga.

Local residents voted to oppose the project, through the Bulga Milbrodale Progress Association (BMPA).

The proposal would require mining through a 'biodiversity offset' area for the mine, that Rio Tinto and the NSW Government have previously signed an agreement to protect from mining.

In February 2012 the Warkworth Extension was approved by the NSW Government. BMPA lodged an appeal against the approval in the NSW Land and Environment Court (an option unavailable to community groups in most circumstances involving coal mine approvals).

In April 2013 the Court found in favour of the BMPA, overturning the approval for the Warkworth Extension. Justice Preston found that the negative impacts of the project exceeded any benefits it would bring to NSW. In particular, he ruled that impacts on the residents of Bulga, and on endangered ecosystems, were unacceptable. In his judgement, Justice Preston dismissed the economic modelling put forward by Rio Tinto in support of the project.

Rio Tinto appealed the L&E Court judgement in the NSW Court of Appeal (Supreme Court) immediately. The following week, the NSW Planning Minister joined the appeal.

Since the Land and Environment Court judgement, the NSW Government has changed mining regulations (specifically, the State Environmental Planning Policy, or SEPP), to force coal mine approval authorities to prioritise the 'significance' of a coal resource over the impacts of mining, when making a decision on a mine proposal.

In November 2013, Rio Tinto applied for a minor extension of the Warkworth coal mine into the same area subject to the WEP proposal. This was approved.

On 1st April 2014, Rio Tinto submitted a new application to expand the Warkworth mine that essentially mirrors the Warkworth Extension Project. Under NSW Planning law, the new application, the “Warkworth Continuation Project” will not be subject to third party merits appeal rights. This means that if the NSW Government approves the new application, that decision will not be challengable in court.

Bulga residents are alarmed at strong indications the NSW Planning Department has been working closely, behind closed doors, with Rio Tinto, to force through the expansion of the Warkworth coal mine, and exclude residents, and the courts, from the process.